Burger Law Blogs

Gary: Have you ever had it where someone doesn’t know why they fell at first?

Joel: Yeah, yeah.

Gary: What do we do about that?

Joel: In those types of situations when a client has ended up on the floor because they slipped and fell in a dangerous condition, usually it is an intel after the fact that they realized that, “Hey, this was a dangerous condition. I didn’t see it, it wasn’t there, it wasn’t open and obvious, and that’s why I’ve been hurt.” And so, those are the types of claims that we usually would pursue.

Gary: Great point. And, that happens all the time because if they knew there was lettuce on the floor like the case we talked to the client yesterday, if they knew it was icy, if they knew there was a shake on the floor, they would not walk there. And Joel brought up, what does open and obvious mean?

Joel: If a particular dangerous condition is present and it would be open and obvious to a reasonable person, then that’s something that a person should be made aware of just by being present around the dangerous condition.

Gary: And there are jury instructions on that. So, the jury instructions say that if you’re negligent, if you knew it was there, or if you’re coming up to a hole in the sidewalk and there are barricades around it, you don’t keep going, so you have to be aware of that, and so that’s right. And folks all the time fall and they don’t know what they fell on until afterwards. They’re laying on the ground, and they see the piece of food that was on the ground, they see the ice, they see the water. And, I’ve had these folks, I’ve been in depositions, like, “What did you fall on? ‘I don’t know.’ What do you mean you don’t know? ‘I was soaking wet after.’” So, then we know that they fell on water. And, I’ve had this so many times where someone falls, and there’s ice in the parking lot, and then someone comes in and tries to help him and slips on the same ice that they were on. Didn’t we have that, the person slipping on the same patch of water, or is that the case you were working on with me where she was by the door and then the manager came by and slipped on the same patch of water and got a towel and wiped it up?

Joel: Right. Yeah, I actually remember that particular case.

Gary: So, that happens all the time. So, it’s not necessarily that you know what is going into it, but you know about it after.